Books v. City of Elkhart and Progeny Beginning with Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000), however, courts have minimized the role of context in evaluating the constitutionality of Ten Commandments displays. Books involved a display of the Ten Commandments that also included the "all-seeing eye," an American Eagle grasping an American flag, two stars of David, two Greek letters - Chi and Rho, and a small scroll indicating that the monument was presented by the Fraternal Order of Eagles. The monument was located on the lawn of the municipal building, and nearby were a war memorial and a freedom monument. The plaque on the freedom monument read: "Behold, friend you are now on hallowed ground for here burns freedom's holy light." Id. at 295-96. The trial court upheld the constitutionality of the display, ruling that a reasonable observer would find that the monument was part of the City's overall collection of displays of historical and cultural significance. 79 F. Supp. 2d 979, 1006 (N.D. Ind. 1999).
The court of appeals reversed, however, holding that the display lacked a secular purpose, and that a reasonable observer would perceive a governmental endorsement of religion from the display. 235 F.3d at 307. The court's decision that the display lacked a secular purpose was based primarily on statements made by various clergy at the dedication of the monument in 1958.
The participation of these influential members of several religious congregations makes it clear that the purpose for displaying the monument was not only to provide youths with common code of conduct to guide their participation in the civil community but also to urge the people of Elkhart to embrace the specific religious code of conduct taught in the Ten Commandments. … We cannot escape the conclusion that the purpose in displaying this monument was to promote religious ideals.
Id. at 303. The court also inferred that religious purposes motivated the display from the content of the Ten Commandments themselves. "[W]e do not think it can be said that the Ten Commandments, standing by themselves, can be stripped of their religious, indeed sacred, significance and characterized as a moral or ethical document." The court found the religious nature of the text enhanced by the Jewish and Christian symbols at the bottom of the tablet. Id. at 302.
In similar vein, the court of appeals held that the display in Books advanced religion because a reasonable observer would perceive a governmental endorsement of religion.
Here, in front of the building that houses the governmental departments of the City, stands a religious message. This granite monument is a permanent fixture on the grounds of the seat of government. As viewed by the passer-by or by an individual approaching the building, the monument certainly cannot be fairly characterized as a component of a comprehensive display of the cultural heritage of the people of Elkhart. Rather, it stands, as the City intended it to be when it dedicated the monument on Memorial Day in 1958, as a sole and stark reminder of the specific injunctions contained in the Commandments. Indeed, the surrounding area enhances the dignity and the primacy of the Commandments. Above the door of the Municipal Building are the Latin words "Dedicatum Justitia." Those who view the Ten Commandments are thus informed that the role of the government in that location is to do justice; the only "law" displayed for doing justice is the monument bearing the Ten Commandments. The only other display on the lawn of the Municipal Building is the War Memorial that reminds the onlooker that the space in front of the Municipal Building is "hallowed ground." The person approaching the seat of government is thus informed that, at that location, the government goes about the business of doing justice, that the only "law" displayed is the Commandments, and that these Commandments are displayed on land designated by the government as "hallowed ground."
Id. at 306 (citations omitted).
The court gave lip service to the Supreme Court's analyses in Lynch and Allegheny, but the court's conclusions are arguably irreconcilable with those cases. As the dissent argued, the display in Books is actually less religious than the display in Lynch. The creche in Lynch is solely a religious symbol, while the Ten Commandments are both religious and secular because six of the commandments form the basis of the nation's laws. Id. at 317 (Manion, J., dissenting). Judge Manion explained further:
True, there were many more holiday displays present in Lynch than are located in the 25-foot-wide courtyard at issue here, but Elkhart's display still includes more than the total of three involved in Allegheny. In Allegheny, in addition to the menorah, there stood only a Christmas tree and a sign stating "Salute to Liberty." Compared to Allegheny's constitutional "salute to liberty" display, Elkhart's cultural and historical display more fully neutralizes the religious dimension of the Ten Commandments. In short, if the menorah was constitutional in Allegheny, the Ten Commandments display must be in this case.
Id. at 317.
The court of appeals' secular purpose analysis in Books is also more reflective of Stone than Lynch or Allegheny. As did the Court in Stone, the Seventh Circuit court summarily rejected the government's articulated secular purpose for the display, ignoring the Supreme Court's teaching that 1) government actors may have religious motives for enacting a law or policy, provided they also have a legitimate secular purpose, see, e.g., Board of Education of Westside Community Sch. v. Mergens, 496 U.S. 226, 249 (1990) (plurality), and 2) only one secular purpose need exist. See Lynch v. Donnelly, 465 U.S. at 681 n.6. Moreover, the Seventh Circuit focused primarily on the statements of private citizens at the monument's dedication almost a half century ago, long before a ban on governmental endorsement of religion was read into the Establishment Clause. The court virtually ignored the purposes articulated by the Elkhart City Council for retaining the monument once the ACLU challenged its constitutionality.
Specifically, the City Council decided to retain the Ten Commandments monument because as one of the earliest codes of conduct, the Ten Commandments had a significant impact on the development of the fundamental legal principles of Western Civilization. The City Council also noted that "the monument contains symbols that reflect the cross cultural and historical significance of the Ten Commandments" and that the monument serves as a recognition of those roots. See id. at 313 (Manion, J., dissenting). Yet, as the dissent observed: The court acknowledges the validity of Elkhart's asserted secular purposes, stating "the text of the Ten Commandments no doubt has played a role in the secular development of our society and can no doubt be presented by the government as playing such a role in our civic order." … Yet the court concludes that "the purpose in displaying the Ten Commandments monument was not secular." How can the court on one hand recognize the legitimacy of this purpose and on the other conclude that Elkhart lacks a legitimate secular purpose for leaving the Ten Commandments monument in place? Apparently, the court just doesn't believe that the City of Elkhart's statement of secular purposes is sincere and not a sham. … [A]bsent some evidence that the [City] Council's stated reasons for its decision are insincere, we should defer to those asserted justifications. … This is in keeping with the well settled maxim that courts are "reluctant to attribute unconstitutional motives to the States, particularly when a plausible secular purpose for the State's program may be discerned from the face of the statute." Mueller v. Allen, 463 U.S. 388, 394-95 (1983). This is true whether the governing body is a state legislature or a city council.
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And the caissons go rolling along...
So, the 7th Circuit in this case, came to the same conclusion as the 11th did, because of Moore's statements which explicitly refer to his rock as a religious display.
So, how do you explain Texas? Already litigated, and it was found to have a secular context.
To me, these cases are clear: no religious preference in public displays.
Would you be OK with a Koran in a Supreme Court building foyer?